T7835
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Kylie Frances Brewer and Aquatas Pty Ltd
Industrial dispute - termination of employment - procedural fairness denied - no valid reason for termination - dismissal unfair - reinstatement considered impractical - compensation ordered - order issued REASONS FOR DECISION This application was lodged by Kylie Frances Brewer pursuant to section 29(1A) of the Industrial Relations Act 1984, seeking a hearing in relation to a dispute with Aquatas Pty Ltd re the termination of her employment. The matter came before the Commission for hearing on 10 August 1998. Ms O Garrott, a legal practitioner of Piggott Wood and Baker, sought and was granted leave to appear for Miss Brewer. Mr J O'Neill of the Tasmanian Chamber of Commerce and Industry Limited represented Aquatas Pty Ltd. Background Ms Brewer was employed as a "regular casual" process attendant in the smokehouse at the company's fish processing site at Margate. She commenced work with the company in the preparation room in April 1997. She was employed initially on a three-month trial basis. She later moved to the slicing room. She also worked in the "fresh" area. Her work pattern was said to be 8 hours per day for more for 5 days a week between September and March; for the remainder of the year she was employed mainly for 3 days a week, though sometimes for only 2 days per week. Her normal hours were from 7.30 a.m. to 3.30 p.m. Ms Brewer said that because she was experienced in both areas she would frequently volunteer or would be asked to work. She said that sometimes the supervisor in the "prep room" would ring her because she knew that she could do the work and she would end up getting more hours than other casuals, although Ms Minehan, her usual supervisor in the slicing room, in evidence said Ms Brewer was given no more work than the other employees. Ms Brewer said she liked the work, she was a hard worker and was studying for a Certificate in Food Processing, General Foods, which would have been taken her at least 2 years to complete. The general view of Ms Brewer's seniors was that she was a good worker when she was not being disruptive and that she had done exceptionally well in her training and was keen to complete her certificate. On 26 June 1998 Ms Brewer received a written warning about an incident which occurred at a work function outside working hours on 19 June 1998. On 6 July 1998 Ms Brewer's employment was terminated following a complaint by a fellow worker about an incident in the slicing room. Amongst other things the applicant contended that the warning of 26 June should not have been relied on to terminate Ms Brewer's employment. THE INCIDENT OF 19 JUNE 1998 The circumstances: It seems that the company had invited all employees to attend a barbecue to farewell a worker who was returning to Japan. Mr Young, the smokehouse production manager, thought about 50 people attended. The function started at 4.30 p.m.; Ms Brewer left at about 7.30 p.m. She said "a fair bit" of alcohol was consumed and "everybody stood around drinking, joking and stirring each other". Not a great deal of swearing was involved. According to a work colleague, Ms Lyn Newbon, everyone was "pretty loud" and there was a "happy atmosphere" at the function. Ms Brewer thought that her "stirring" was no better or worse than that of anyone else in her group. That view was not supported by one of the witnesses, Ms McMillan, a freight clerk, who considered that Ms Brewer's behaviour and language were "disgusting" and "stood out way beyond everybody else's". That witness said she suggested to Ms Brewer, after she heard one female employee say to Ms Brewer that she would "knock her head off", that she should "settle it down a bit" because she was "starting to offend people". Ms Brewer apparently replied "fine", and shortly after left for her car in the adjoining car park. In cross examination Ms McMillan said some of the employees could behave fairly roughly on occasions but that 19 June Ms Brewer's behaviour "stood out". Ms Brewer in her evidence claimed she did nothing at the function that others did not do to her and "everybody was laughing". Mr Young said that Ms Brewer had "stirred" three people in his group; two had retaliated and walked away, the third had "totally ignored" Ms Brewer. Mr Young said the banter, which resulted in some members walking away from Ms Brewer's group, occurred about an hour and a half after "alcohol" was first served. He said Ms Brewer had a louder voice than "one or two others" who were "a fairly good match for her". He agreed that Ms Brewer left the barbecue "of her own volition". Ms McMillan said that she told Mr Young that Ms Brewer and another employee, Ms Newbon, were screaming at each other in the car park. Mr Young said he heard someone call his name and he went to investigate. He and Ms Newbon stopped Ms Brewer from driving her car. As they were concerned Ms Brewer had "had a bit to drink", he removed the car keys and gave them to Ms Newbon. It appears Mr Young then left, as he thought things had calmed down. Shortly afterwards another employee, Ms Allsopp, approached Ms Brewer who, with a can in her hand which contained some beer, had been sitting in her car. As the other employee approached, Ms Brewer got out of her car and Ms Newbon said she stood between them as she did not want them to start fighting. Ms Brewer flicked the can at Ms Allsopp to indicate she should go away and splashed some beer on Ms Allsopp. Ms Newbon recalled the incident this way:
Mr Young said he returned to the car park when he heard screaming and saw Ms Allsopp coming back from the car park in the laneway. He found Ms Brewer with blood on her face and on her hands. She had "obviously been assaulted," he said. In his evidence Mr Young said he had not heard Ms Brewer make any comments to Ms Allsopp at the function, and Ms Brewer claimed she had no contact with Ms Allsopp at the function. In relation to Ms Brewer's behaviour at the function, Mr Young said he had tried to explain to her, before the fight, that other people would get upset with her. He said he told her that those in the slicing area were used to it, but Ms Brewer still "thought she was doing nothing wrong".2 Ms Brewer was taken to the local police station where she said she sought to lay charges against the other employee involved and the police took her to the emergency department at the Royal Hobart Hospital. She had a "couple of days off work". The investigation and warning process: Mr Young said he went to New Zealand the day following the function and returned on Thursday, 25 June. An investigation into the incident had commenced in his absence. On Friday, 26 June, the day after she returned to work, Ms Brewer was asked by management to attend a meeting at 1.30 p.m. to make a statement about what had happened at the function. She was invited to take a witness with her, which she did. Ms Allsopp was also summoned to the meeting. Ms Brewer said she thought she was going to be asked about what had happened in the car park; however she said she was only asked whether she had aggravated the other employee or made any allegations that could have upset her during the function, to which she replied "no". Ms Brewer said she signed as having understood the warning letter "after 15 minutes or so", but felt pressured into doing so, and she contacted legal aid later that day for advice as she did not agree with the "letter of misconduct at all". On 29 June she wrote to the company denying the claims of misconduct advising that she had needed "more time to think about it". Mr Young who, with Mr Dacomo, the product development officer, interviewed Ms Brewer and Ms Allsopp together, claimed that at that meeting Mr Dacomo had explained why each of the women were to receive a similar written warning. Mr Dacomo had asked them to read the warning letter carefully and had asked them if they had any objections. If they had no objections they were asked to sign the statement, signifying that they understood the warning. He said they did. During cross examination Mr Young said that he had "counselled Ms Brewer" immediately after she had received the warning letter and advised here that "one more step out of line and she was gone"3. Mr Angus McNeil, the personnel and administration manager, had been at the function for about an hour. He was not aware of the incident involving Ms Brewer and Ms Allsopp until the following Monday morning. He said he collected witness statements from those he thought would be key people. A warning letter was then prepared. The warning letter contained the following under the heading "Details of Misconduct":
Under the heading "Action to be Taken by Employee":
And under the heading "Consequences of Repeat of Misconduct":
Ms Brewer said she had not received a reply to her letter of 29 June. She did however speak about it to Mr McNeil in the week prior to her dismissal. He said that at their meeting Ms Brewer indicated that she thought she had been treated unfairly and she wanted the first two clauses removed as they had little to do with the subsequent fight. He said he told her he disagreed but that he would discuss the issue with the managers involved. He admitted that when he had spoken to Ms Brewer he had not put the substance of the witness statements to her, nor had he put to her allegations that she was behaving in an annoying and offensive manner at the function. THE INCIDENT OF 6 JULY 1998 The circumstances: Early in the shift on that day it seems that Ms Brewer was moved from her position at the table in the Slicing Room because she was talking with another employee (Paulette Smith) who was working at the slicer. Ms Brewer said she had taken two steps away from the table towards the slicer to speak to Ms Smith. She said the supervisor involved, Mrs Minehan, regularly moved employees who were talking to another table or to another position in the factory. She said other supervisors did not worry about talking if the work was being done. Ms Brewer said she had only been moved because of talking; she had never been told that she was not doing her work. Ms Minehan said on the morning of 6 July Ms Brewer was "continuously talking to the girl on the slicer" (Ms Smith). She told Ms Brewer to stop talking as she was preventing Ms Smith from doing her work. She moved Ms Brewer to another table. As she walked away, Ms Brewer had laughed. Ms Brewer said the employee operating the slicer at the other table (Maria Nomikos) next to whom she was placed, complained that everybody was moved because of talking. It was claimed that Ms Nomikos and the person (Chris) whom Ms Brewer replaced were friends. Her version of the events was that Maria was "really upset" that Chris had been moved. In her evidence Ms Nomikos said she was upset because when she got to work that morning she had been told that another female employee was interested in her boyfriend and had been "making gestures towards" him. It seems the supervisor took a break and at that time another employee (Monica) came in and was invited by Ms Nomikos to work near the slicer in place of Ms Brewer. Ms Brewer claimed Maria and Monica talked for at least half an hour while the supervisor, who had returned from her break, was standing right behind them without comment. Ms Brewer said when they finished their table she went back to the other table to operate the slicer. She began talking to Ms Smith and the supervisor moved her to another table. Later Ms Nomikos and Monica were separated for talking and Ms Nomikos was put to work on the scales. The supervisor could not remember Ms Nomikos and Monica chatting together but agreed she might have separated them. Ms Brewer claimed the incident with Ms Nomikos started at that point. She said she was "basically just stirring her to get her out" of her "really foul mood". She told Ms Nomikos to "smile or her face will crack" as she put fish on the table and she said Ms Minehan was no more than two metres away; "at no time did she (Ms Minehan) step in and say anything," Ms Brewer said. She said she continued "stirring" Ms Nomikos for about 15 or 20 minutes. Eventually Ms Nomikos could take no more and told Ms Brewer "to eff off", and to leave her alone. Ms Brewer said she told her not to blame her for being in "a shitty mood". Ms Nomikos responded by telling her it was her own fault that her head was punched in and that it should happen more often. At that stage Ms Brewer said she put her hand on a packing board for 500 grams of salmon which was on the table on which Ms Nomikos was working. When she took her hand off the packing board, it accidentally fell to the floor. She bent to pick it up, stopped for some reason, stepped back and accidentally hit the emergency stop button for the slicer with her elbow. Ms Nomikos picked up the board and put it in the rubbish bin. The supervisor then told Ms Brewer to turn around and concentrate on her work. Ms Brewer restarted the machine and nothing more was said until the supervisor took a break, when she said to Ms Nomikos "are you happy yet?" Ms Nomikos then left the table, she said. In respect of the exchange between Ms Brewer and Ms Nomikos, Ms Nomikos said:
She said Ms Brewer had been "hassling her" from just after the first break until the next break which she calculated was two hours. She denied that she had been talking amicably with Ms Brewer for a considerable time before she took offence. She said she thought the only reason Ms Brewer touched the board was to annoy her. Ms Minehan said she first noticed Ms Brewer and Ms Nomikos talking to each other when Ms Brewer was on the slicer and Ms Nomikos was weighing fish. Ms Minehan was talking to a visitor. She said:
and
When asked whether Ms Brewer had bumped the stop button accidentally, Ms Minehan said:
She later agreed that the action was not deliberate. When Ms Nomikos went outside Ms Minehan followed to see what she was doing. Ms Nomikos told her that she was getting angry with Ms Brewer and needed a break because Ms Brewer was harassing her saying "are you sad, are you all right, can I make you feel better"; or, "You're not going to cry are you". Ms Nomikos said that when she told Ms Brewer that she would tell Ms Minehan if she did not behave herself, Ms Brewer said, "I don't care, she won't say anything to me". Ms Minehan said she had not said anything to Ms Brewer because she was talking to a visitor. Ms Minehan did not know how long the incident continued. Ms Brewer said she had not realised that Ms Nomikos had "seen anybody about the issue"; she thought she "was going to the toilet". The investigation and termination process: Mr Young said his first involvement with the incident on 6 July was when Ms Minehan reported there had been a disturbance between Ms Brewer and Ms Nomikos in the slicing area which had involved Ms Brewer "going up to Ms Nimokos and asking her different questions". Mr Young described the procedure he had followed in relation to the report in the following manner:
Mr Young confirmed that he had made the decision to terminate Ms Brewer's employment based on the warning letter of 26 June, the fact that the reported incident could be categorised as one of those described in the warning letter, and the fact that Ms Brewer "had been verbally warned by Ms Minehan three times before on the morning of 6 July". He had not told Ms Brewer between 26 June and 6 July that any further disruptions would cause dismissal. Ms Minehan said Ms Brewer told them at the interview that when Ms Nomikos went to pick up the packing board, she had "flicked it out of Maria's hand". She had not seen all of the incident, she said. Ms Minehan said that Ms Brewer did not seem surprised that she had lost her job and just kept saying "it's not right, it's not fair". When asked whether another warning would have been sufficient, she said Ms Brewer had been warned three times that morning and she thought that was quite sufficient. She added that an employee did not get three warnings in one morning. Ms Brewer said she told Mr Young and Ms Minehan that nothing was going on between her and Ms Nomikos. She said, "we were just stirring". She said, "I was just mucking around". When Mr Young reminded her of the warning letter's reference to not offending or upsetting any other person in the workplace, she said she had not meant to upset Ms Nomikos and that as far as she was concerned "it was over". She was then told that the matter "would have to be `looked into'" and she was asked to get Ms Nomikos to come to the office. Ms Nomikos was with Mr Young and Ms Minehan for "at least half an hour to three quarters of an hour". After a break had been taken Ms Brewer was called to see Mr Young and Ms Minehan and she was told "a complaint had been laid and that they had no choice but to dismiss" her. Ms Brewer thought they were joking, and told them so, she said. She said:
Although she had been invited to have a witness at that meeting she did not "think it was such a big issue". Ms Brewer said she rang work the following day, 7 July 1998, and asked for a "letter" and her pay; she collected both later that day. The termination letter10 dated 6 July 1998 and signed by the Personnel and Administration Manager, Mr McNeil, was worded in the following manner:
Mr McNeil said he had discussed the incident of 6 July with the managers involved and suggested they carry out a "proper investigation and talk to witnesses prior to coming to a conclusion on the matter". He said Ms Brewer was given "at least" two verbal warnings about her behaviour in the two or three days she worked in the slicing area immediately after coming back from the incident on 19 June. He was under the impression the supervisor was giving her "some leeway" and was "trying not to come down too heavy on her straight away". Mr McNeil thought those warnings were only a very small part in the termination considerations. Other evidence: Ms Brewer, when asked during examination in chief about her alleged disruptive behaviour, said:
and later:
When asked about the claim that the incident resulted in lost productivity, Ms Brewer replied:
The employer was unable to give any estimate of the alleged loss of productivity. In cross examination Ms Brewer said nothing was ever mentioned to her about being slack. The only criticism had been that her voice was louder than others. Ms Brewer denied she had received verbal warnings about her conduct while in the smokehouse on each of the three days leading up to 6 July. In her evidence Ms Minehan said that most of the time Ms Brewer was very disruptive, "but when she wasn't she was a good worker". She said Ms Brewer would roam around talking to the other employees while they were trying to do their work. She said that caused a "marked slow down" in production. She said she had to tell Ms Brewer to be quiet and to stop disrupting the workplace on quite a few occasions. She said the employees were chastised for talking only if their talk disrupted the other workers. They were only moved after they had been given "a few warnings", she said. Ms Newbon said employees in the slicing room were moved from table to table for talking although she said "some people could get away with more things than other people".14 She said she had been moved four times in one day. Ms Minehan, she said, moved people "at random". Although it seemed there was a "blanket ban" on talking, she said there was no loss of productivity because she said "you can work and talk too". Ms Newbon said she had been given a warning about talking and directed not to talk if it was not work related. Submissions Ms Garrott submitted that although Ms Brewer had signed the warning letter of 26 June, she had expressed concern about some of its features in her letter to the company of 29 June and had received no reply. She said what happened on 6 July was a result of the events of 19 June. Ms Garrott accepted that given the short length of time between the warning and the dismissal there may not have been a chance for anything to have been done to raise Ms Brewer's concern with other managers. As the allegations about Ms Brewer's behaviour at the function of 19 June were under challenge, Ms Garrott submitted the warning should not be applied to the events of 6 July. In respect of the warning of 26 June, Ms Garrott submitted that Deputy President Drake of the Australian Industrial Relations Commission15 had found that when conduct being complained of by an employer, occurred in a break in the performance of employment obligations, the employer did not have the right to an overview of the employee's conduct as the employment obligations were suspended. Ms Garrott acknowledged that the Deputy President had recognised exceptions to this principle in circumstances where such conduct might reflect on the employer in the conduct of its business or where the act of engaging in such activities might indicate unfitness for work or was, intrinsically, improper conduct. Ms Garrott submitted that the very most the Commission could find about the applicant's conduct was that it consisted of the applicant speaking loudly and using coarse language to some other employees in circumstances where some of those other employees also initially participated. She submitted the applicant left the function and did not intend to return. A fight occurred in the car park as a result of an approach to the applicant by another employee. She submitted that the applicant's conduct on 19 June at the work function did not reflect on her capacity to undertake her employment obligations. She further submitted that the applicant's conduct did not reflect on the employer in the conduct of its business, as:
Alternatively she submitted that if I were to find that the warning of 19 June was justified then, I should find that, in the circumstances of 6 July, a further warning would have been more appropriate. In any event Ms Garrott submitted Ms Brewer's behaviour on 6 July did not justify her dismissal. The warnings given on that day were the normal warnings to stop what was perceived as disruptive behaviour; they were not, Ms Garrott said, warnings which instilled a fear in the applicant that her job was in jeopardy. Ms Garrott submitted that a warning that any further conduct of a like nature to that of 6 July would result in dismissal would have been fair. She said the evidence from Ms Minehan of how she had dealt with disruptive incidents "over the years" led Ms Brewer to believe that the morning of 6 July was no different from any other day on which Ms Minehan "warned" a worker. It would have been fair, she said, to have instilled in Ms Brewer's mind some comprehension of the seriousness with which her actions were regarded. She said the warning given to Ms Brewer about her actions at a work function were not related to her actions in the workplace. She submitted that Ms Brewer's actions in the workplace justified a further serious warning rather than the warnings given by Ms Minehan which were the same as she had given to other employees "for years". Ms Garrott said I should ignore the evidence of Mr McNeil in respect of warnings earlier in the week of 6 July, and that I should prefer the evidence of Ms Minehan to that of Ms Nomikos in respect of the length of time that the incident of 6 July occupied. As to the remedy, Ms Garrott submitted that the applicant wished to be reinstated, but if that were found to be impractical, then substantial compensation should be awarded based on the period of time she might be unemployed, and the wages she received while working for Aquatas. Weekly pay slips itemising the hours worked and the wages Ms Brewer received from Aquatas between June 1997 and July 1998 were tendered and marked Exhibit 4. Mr O'Neill submitted that the casual nature of Ms Brewer's employment, her personality and the culture in the workplace and the verbal warnings were incidental issues. He said the "crux of the case" was that Ms Brewer was given quite clear instructions on 26 June that there would be "no further warnings" and that "failure to follow the above actions" or "any further misconduct will result in dismissal". Mr O'Neill argued that regardless of the fact that Ms Brewer had disputed the allegations, the warning letter stood and there was no ambiguity in it. He asserted that the incident of 19 June at the workplace, whether within actual working time or not, was serious. He said the incident occurred at a function arranged by the employer on the employer's premises. He contended that Ms Brewer's behaviour was not satisfactory and there was a link between what happened at the function and what happened at the car park later. Mr O'Neill claimed that as a result of Ms Brewer's behaviour on 6 July there was a loss of productivity, which he could not quantify. He contended that Ms Brewer had been given every opportunity to respond to the allegations of misconduct alleged to have occurred on 19 June and 6 July; she was invited to have representation with her and was given every opportunity to improve her conduct between those dates. Mr O'Neill conceded that Ms Brewer's employment obligations were suspended at the time of the incident on 19 June, but he claimed her conduct "before, during and after the social function" had a direct impact on the employer in the conduct of its business. In that context Mr O'Neill quoted from a decision of Finn J in the Federal Court16 in a matter involving sexual harassment in the workplace which, he said, had general application. Mr O'Neill then referred to a decision of Judicial Registrar Ryan of the Industrial Relations Court of Australia17 in which it was held that the fact that an incident took place outside the workplace during a work-sponsored Christmas function, was in no way a mitigation of the conduct which occurred. He also referred to a decision of Murphy J of the Federal Court18 where it was held there was a "significant connection" between an incident and the employment of a former employee when the incident took place outside the workplace and outside working hours. He submitted that Ms Brewer's conduct in the workplace prior to the function, at the function and on return to the workplace was "totally unacceptable" and had a "detrimental effect on the operation of the employer's business". Accordingly a valid reason existed for the termination of Ms Brewer's employment. Furthermore, he submitted, Ms Brewer was afforded "procedural and substantive fairness". Ms Brewer was counselled in relation to the final warning and she failed to meet her obligations by not "following the reasonable standards of behaviour expected". He submitted the company would have great difficulty with reinstatement. Ms Brewer's position had been filled and another position, not necessarily in the same area, would have to be found if reinstatement was ordered. He said a very strict probationary period would be necessary as "all contract appointments are fixed term contracts". FINDINGS The incident of 19 June and the warning letter of 26 June: I am satisfied on the material put, including the cases referred to by the parties, that the altercation between Ms Brewer and Ms Allsopp in the company car park before the company function had concluded was serious enough to warrant a severe written warning to both participants. I further consider on the material put that the company would have been less than diligent if it had not issued such a warning. However, as there is no evidence of any contact between Ms Brewer and Ms Allsopp at the function itself, I consider it was inappropriate to link the fight in the car park with Ms Brewer's behaviour at the function proper, although it is clear that Ms Brewer was obviously feeling the effects of the alcohol she had consumed at the function. All the evidence suggests that it was Ms Allsopp who approached Ms Brewer, in the car park, away from the function. There was no suggestion that Ms Brewer had sought out Ms Allsopp. If Ms Brewer's behaviour at the function was sufficient motivation for Ms Allsopp's approach, and there is no evidence that it was, or that her behaviour was such that it was deemed to be so annoying and offensive that a warning was necessary, I consider that the senior people at the function should have tried to persuade Ms Brewer to desist from, or at least modify her behaviour at an early stage of the function. They did not do so. That is unfortunate because it was possible that Ms Brewer would have complied with such a request given that she took notice of such advice from Ms McMillan, an employee who was in no position of authority over her, towards the end of the function, and left. On balance however I am satisfied that some employees at the function were annoyed and offended by her behaviour and, although it is of some concern that Ms Brewer received no formal response to her letter of 29 June in which she denied misconduct, I do not intend to interfere with the warning letter of 26 June 1998. The termination of 6 July: As indicated earlier, I have considered the cases referred to me by the parties and while they each provide some assistance in relation to the incident of 19 June, they have little relevance to the circumstances of 6 July. Ms Brewer's conduct in the workplace prior to the function of 19 June 1998 was introduced by Mr O'Neill as being relevant to these proceedings. I presume that the formal warning, termed a final warning, of 21 May 1998 concerning Ms Brewer's refusal to wear safety glasses "when getting chemicals" is the conduct prior to the function which is referred to by the employer. As that warning was not referred to in the warning letter of 26 June, nor mentioned at the time of Ms Brewer's termination, I do not accept that it was or should have been included as a reason or part of the reason for Ms Brewer's dismissal. The termination letter of 6 July alleged that Ms Brewer had been guilty of misconduct which consisted of disruptive behaviour in which she deliberately antagonised another employee resulting in offence to that person, and that there had been lost productivity. That allegation was coupled with the further allegation that she had behaved in that manner despite requests from her superior earlier that day "to avoid talking to other employees and disrupting their work". The termination letter also relied on the fact that the warning letter stated that any further misconduct would result in dismissal. Her supervisor says she "warned" Ms Brewer three times on the morning of 6 July and it is clear that she moved Ms Brewer, on at least two occasions, in an endeavour to limit what she perceived to be the disruptive effect of Ms Brewer's talking or "chatter". Again I presume these warnings are the supervisor's requests referred to in the warning letter. Ms Minehan claimed that a "warning" was when she would go up to an employee and say "please be quiet" and "stop disrupting the workforce", or words to that effect. Ms Minehan also claimed she usually only had to tell people once and the whole slicing room would be quiet. But that does not sit easily with:
This leads me to the conclusion that warnings about "chattering" and the random movement of employees were fairly commonplace in the slicing room. Notwithstanding the existence of the warning letter of 26 June, I am not satisfied that chastising an employee in the manner described by Ms Minehan, given that it was a fairly regular occurrence, could be categorised as a warning which might lead to dismissal unless the employee had been told that failure to desist from such behaviour could result in the loss of her or his job. In addition it is clear from the evidence that these allegations were not put to Ms Brewer at the time of her dismissal but surfaced only in the termination letter which she received the following day. In the circumstances I have come to the conclusion that the so-called warnings should not be relied on by the employer as a reason or part of the reasons for Ms Brewer's dismissal, and if they were to be relied on they should have been put to Ms Brewer during the interview which led to her dismissal. Similarly, accusations of lost productivity were not put to Ms Brewer at her termination interview and in her evidence she denied there was any loss apart from that which occurred during the investigation and interview process. The employer simply asserted there was a loss of productivity but was unable to quantify the loss. In the circumstances I consider that Ms Brewer was denied procedural fairness in respect of the allegation relating to the so-called warnings and in respect of the allegation that she had been responsible for a loss of productivity. Having dealt with allegations of lost productivity and previous warnings, the remaining allegation is that Ms Brewer had deliberately antagonised Ms Nomikos which caused offence to her and that such action was further misconduct in the terms of the warning letter. The warning letter in the second section dealing with action to be taken by the employee is not clear as to what is meant by the words "offending another person". I interpret those words as being applied in the same context as they were used in the first section, that is that Ms Brewer should not be offensive to another employee by behaving and saying things such as she had said at the function of 19 June. There seems little doubt that Ms Brewer was being a nuisance in the slicing room on the morning of 6 July. I accept that as a result Ms Nomikos was annoyed, angry and upset with Ms Brewer and she thought she would lose her temper; but it is not clear that Ms Brewer offended Ms Nomikos in the way that others at the function on 19 June had been offended; nor does Ms Nomikos' evidence contain that claim. Ms Brewer did not abuse or swear at Ms Nomikos, nor did she throw anything at Ms Nomikos. In those circumstances I do not consider that the second part of the warning letter headed "Action to be taken by Employee", can or should be invoked for the purpose of dismissing Ms Brewer based on her exchange with Ms Nomikos. The critical issue in the warning letter is the last section which warned the employee that any further misconduct would result in dismissal. Accordingly I must determine whether Ms Brewer's actions, her exchange with Ms Nomikos and the incident with the packing board amounted to misconduct. Ms Minehan, as one of Ms Brewer's supervisors, was aware, or should have been aware, of the terms of the warning letter of 26 June, but she did not tell Ms Brewer that what she was doing on the morning of 6 July was misconduct, or that her behaviour was likely to lead to her dismissal. Ms Minehan witnessed some or all of the exchange between Ms Brewer and Ms Nomikos and the packing board incident while talking to a visitor and simply told Ms Brewer to get on with her work. Although it is easier to deal with such matters with the benefit of hindsight, I consider that if Ms Minehan thought Ms Brewer's behaviour was so bad that she might be dismissed because of it, she should have told Ms Brewer so in no uncertain terms during the course of the morning. She had ample opportunity to do so but she maintained her routine admonitions of "please be quiet", "get on with your work", and "don't disrupt the other employees", etc. That being the case I am not surprised that Ms Brewer had the impression that all was normal and I think it was not unreasonable for her to have reached that conclusion. Of additional concern to me is the reliance the employer placed on Ms Nomikos' complaint given that in her evidence she suggested that if she had been in a better mood on the day she would not have reacted to Ms Brewer in the way that she did. I accept that concession must be balanced against Ms Brewer's admission that she may have "stirred" Ms Nomikos "a little bit too much" on this occasion. But whether Ms Brewer was unduly provocative or Ms Nomikos over-reacted, Ms Brewer was not warned that what she was doing was likely to be regarded as misconduct which might lead to her dismissal. I consider that Ms Brewer should have been told quite clearly, verbally or in writing, that she was not to talk unnecessarily with the other employees in the slicing room (it seems that it was in the slicing room that Ms Brewer's behaviour was of most concern), that she was to engage in no banter with the other employees in the slicing room, and that she was not to roam around the room. If such a warning had been given I would have had no hesitation in dismissing this application. But such a warning was not given. In these circumstances I do not consider the wording of the warning letter or the responses of the supervisor conveyed clearly enough to Ms Brewer that her behaviour was likely to be deemed misconduct in accordance with the warning letter. Accordingly I consider that it was unfair of the employer to rely on the words "any further misconduct" to justify Ms Brewer's dismissal, Having considered all the evidence and submissions, I consider that the employer did not have a valid reason to terminate Ms Brewer's employment on 6 July 1998. Remedy The employer, for reasons which I do not accept, was opposed to reinstatement if I were to find the dismissal to be unfair. Ms Garrott argued that if reinstatement was determined not to be practical, Ms Brewer should be awarded substantial compensation based on the difference between Ms Brewer's wage at Aquatas and what she might receive by way of social security payments. I consider reinstatement would be impractical and inappropriate given the ill will which I believe had developed between Ms Brewer and some other employees and management, and the likely negative impact Ms Brewer's reinstatement would have on the workplace generally. I have also formed the view that if Ms Brewer were to be reinstated it would be difficult for her to conform with the employer's requirements, once they had been clearly articulated, and that within a relatively short period, say six weeks, she more than likely would have attracted the wrath of her supervisors once more. Accordingly I do not think it likely that a harmonious working relationship could be established, and I consider therefore that an award of compensation in lieu of reinstatement is more appropriate. However, for the reasons I have set out immediately above, I do not accept Ms Garrott's submission that a "substantial" sum of compensation should be awarded. With regard to Ms Garrott's submission relating to social security payments, I consider it is inappropriate to offset compensation awarded by the Commission by social security payments received. That, as has been determined before by this Commission, is a matter between the recipient and the Government authorities involved. Having regard to the detail contained in Exhibit 4, in particular relating to the last three months of Ms Brewer's employment, excluding her last two pay periods, I assess reasonable compensation for Ms Brewer's unfair dismissal to be $2160. Such assessment is based on the average number of ordinary hours worked each week in that period at the hourly rate of $11.60. Accordingly, pursuant to section 31(1) of the Industrial Relations Act 1984, in settlement of this industrial dispute, I hereby order Aquatas Pty Ltd to pay to Ms Kylie Brewer the sum of $2160 as compensation for her unfair dismissal in lieu of reinstatement. Such payment to be effected by 25 March 1999.
F D Westwood Appearances: Date and place of hearing: 1 Transcript p.34 |